State v. K. H.-H.

ThlfWplnlon was~~.~.~~
/ f II:E
IN CLEIIKa OFFICI " '
----,-at .;Q.·OU M> Ou~--vL\e 1
\

I \~~~~f
IUPREME COURT. 1111111 QP 'jiM lilliaN
. • DATl:' JUN ;; 3 2011)
--rna_~atl· 9· Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 91934-8
Respondent, )
)
v. ) EnBanc
)
K.H.-H., )
)
Petitioner. )
) Filed JUN 2 :J 2[l16

JOHNSON, J.- This case involves whether a juvenile disposition condition

requiring K.H.-H.-who was adjudicated guilty of fourth degree assault with

sexual motivation-to write an apology letter to the victim violates his

constitutional free speech rights. U.S. CONST. amend. I. We hold that it does not.

FACTS AND PROCEDURAL HISTORY

K.H.-H., a 17-year-old male, was charged with assault with sexual

motivation after he forced himself on C.R., a female acquaintance who attended

the same high school. K.H.-H. and C.R. were sitting on C.R. 's bed when K.H.-H.

began to kiss her on the face and neck. She responded by telling K.H.-H. to "chill

it or to back off." Verbatim Tr. of Proceedings (Aug. 13, 2013) (VTP) at 29.

Undeterred, K.H.-H. pushed C.R. onto her back, leaned over her, and began biting
State v. K.H-H, No. 91934-8

her neck. C.R. protested and tried to push K.H.-H. away and told him to "stop" and

to get off her, and that it hurt. VTP at 35. K.H.-H. "pushed his weight down more

on [her] hands," reached under her shirt and bra in an attempt to touch her breasts,

and reached into and "tr[ied] to undo [her] pants." VTP at 32, 33. C.R. grabbed her

cell phone and threatened to call her father, prompting K.H.-H. to leave the house.

C.R. noticed bruises on her neck from the bites and showed the marks to her

friend, J.S. J.S. confronted K.H.-H. about the incident and then informed a school

official.

The State charged K.H.-H. with two counts of fourth degree assault with

sexual motivation: one for the incident with C.R. and another for an incident

involving a different girl. The juvenile court adjudicated K.H.-H. guilty on the

count involving C.R. and not guilty on the count involving the other girl. At the

disposition hearing, the State requested the court order K.H.-H. to address to C.R.

"a sincere written letter of apology ... mean[ing] an admission that he did what he

was accused of what he's [sic] doing and [is] sorry he put her in that position."

VTP at 149. Defense counsel objected to this condition, insisting that K.H.-H.

maintained the right to control his speech.

The juvenile court sentenced K.H.-H. to three months of community

supervision and also ordered K.H.-H. to "write a letter of apology to victim C.R.

2
State v. K.H-H, No. 91934-8

that is approved by the Probation Officer and the State." Clerk's Papers (CP) at 42.

K.H.-H. appealed his conviction and sentence, arguing in part that the apology

letter requirement violated his rights under the First Amendment to the United

States Constitution to be free from compelled speech. 1

The Court of Appeals affirmed the sentence, holding that the apology letter

was permissible under United States v. Clark, 918 F.2d 843 (9th Cir. 1990),

overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir.

1998), because the apology letter requirement served the State's compelling

interest in rehabilitating juvenile offenders. State v. K.H-H, 188 Wn. App. 413,

421, 353 P.3d 661 (2015).

This court granted K.H.-H.'s petition for review of the condition requiring

him to write the apology letter. State v. K.H-H, 184 Wn.2d 1010, 360 P.3d 817

(2015).

ANALYSIS

This court has never addressed the question of whether it is a violation ofthe

First Amendment or our own article I, section 5 of the Washington Constitution to

order a juvenile defendant in a criminal case to write a letter of apology.

1
K.H.-H. also challenged the sufficiency of the evidence, an issue not before this court.

3
State v. K.H.-H., No. 91934-8

The First Amendment prohibits states from "abridging the freedom of

speech." U.S. CONST. amend. I; see Gitlow v. New York, 268 U.S. 652, 666, 45 S.

Ct. 625, 69 L. Ed. 1138 (1925). The United States Supreme Court has held that

"the right offreedom of thought protected by the First Amendment against state

action includes both the right to speak freely and the right to refrain from speaking

at all." Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 51 L. Ed. 2d 752

(1977). The protection from compelled speech extends to statements offact as well

as of opinion. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S.

47, 62, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Article I, section 5 of the

Washington Constitution guarantees that "[e]very person may freely speak, write

and publish on all subjects, being responsible for the abuse of that right." WASH.

CaNST. art. I, § 5. K.H.-H. does not advocate an independent state constitutional

analysis but instead argues our cases articulate a First Amendment analysis distinct

from that applied in Clark. The issue here centers on the protection from

government-compelled speech.

Because a forced apology involves making an offender say something he

does not wish to say, it implicates the compelled speech doctrine. The compelled

speech doctrine generally dictates that the State cannot force individuals to deliver

messages that they do not wish to make. See, e.g., Wooley, 430 U.S. 705 (the State

4
State v. K.H-H, No. 91934-8

may not compel individuals to display on their vehicles a license plate motto with

which they disagree); W. Va. State Ed. ofEduc. v. Barnette, 319 U.S. 624, 63 S. Ct..

1178, 87 L. Ed. 1628 (1943) (a compelled flag salute and pledge of allegiance in

public schools violates the First Amendment).

First Amendment rights are not absolute, however, particularly in the

context ofprison2 and probation, where constitutional rights are lessened or not

applicable. Similarly, criminal convictions result in loss or lessening of

constitutional rights. Because ofthis, we find Wooley and Barnette are inapplicable

in the present case, as they define the boundaries of free speech for those not

convicted of crimes. While the Supreme Court has never addressed anything

related to the constitutionality of a probation condition that implicates an

individual's right to free speech, 3 the federal circuit courts have reviewed this issue

and analyzed it under similar situations. The Court of Appeals in the present case

relied on the analysis used by the Second4 and Ninth Circuits as articulated in

2
See O'Lone v. Estate ofShabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d 282
(1987) ("'[L]awful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal system.'"
(quoting Price v. Johnston, 334 U.S. 266,285,68 S. Ct. 1049,92 L. Ed. 2d 1356 (1948)).

3See Griffin v. Wisconsin, 483 U.S. 868,874 n.2, 107 S. Ct. 3164,97 L. Ed. 2d 709
(1987) (reserving the question of the standard of review for probation conditions).
4 Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972).

5
State v. K.H.-H., No. 91934-8

Clark in deciding that the disposition did not violate the First Amendment. See

K.H.-H., 188 Wn. App. at 423.

Most analogous to the facts here, in Clark the trial court imposed a probation

condition requiring two former police officers convicted of perjury to publish

apologies for their crimes, which they denied having committed. The officers

posited that the apology requirement violated their First Amendment right to

refrain from speaking. In rejecting this argument, the Ninth Circuit acknowledged

the broad discretion a sentencing judge has in setting probation conditions,

reasoning that "even where preferred rights are affected, [the test] is 'whether the

limitations are primarily designed to affect the rehabilitation of the probationer or

insure the protection of the public."' Clark, 918 F.2d at 848 (quoting United States

v. Consuelo-Gonzalez, 521 F.2d 259, 265 n.14 (9th Cir. 1975)). When applying the

analysis from Clark, a court asks whether the sentencing judge imposed the

conditions for permissible purposes, and then determines whether the conditions

are reasonably related to those purposes. Clark, 918 F.2d at 848.

Asserting that Washington's case law requires more than the ostensible

reasonably related standard articulated in Clark, K.H.-H. cites State v. Bah!, 164

Wn.2d 739, 757-58, 193 P.3d 678 (2008). Bah! concerned a constitutional

vagueness challenge to a community custody condition that the defendant not

6
State v. K.H.-H., No. 91934-8

possess or access pornographic materials, imposed under the Sentencing Reform

Act of 1981, chapter 9.94A RCW. Bah!, 164 Wn.2d at 743.

In Bah!, this court held that sentence conditions that implicate free speech

rights must be narrowly tailored to serve an important government interest and

must be reasonably necessary to achieving that interest. Bah!, 164 Wn.2d at 757.

The State argued in Bah! that Washington law required that sentencing conditions

be only "crime-related" to be valid. This court held that both federal and state law

required more connection (or nexus) before conditions that infringe on

constitutional rights may be imposed. In our analysis, we referred to the analysis in

Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974), which held that

"freedom of association may be restricted if reasonably necessary to accomplish

the essential needs of the state and public order." (Emphasis added.) We concluded

that the restriction on accessing or possessing pornographic materials at issue was

unconstitutionally vague. Since Bah! involved a vagueness analysis, where the

inquiry also focuses on notice concerns, it is of little relevance here. 5 Even if one

were to equate the two approaches, we would uphold the condition here.

5 No argument is made here that the condition is vague or that K.H.-H. could not
understand the requirement.

7
State v. K.H-H, No. 91934-8

Although Clark and Bah/ use different words and terms, they both embrace a

somewhat similar approach of looking at the underlying purpose ofthe act as well

as the nature of the crime in determining whether the condition is appropriate. The

principles anchoring the analysis in both cases can be traced to the same source.

The origins of the "reasonably related" analysis utilized in Clark come from the

case Consuelo-Gonzalez, which analyzed the scope of constitutional protections

available to probationers that were subject to limitations under the federal

Probation Act, ch. 521, 43 Stat. 1259 (1925). Consuelo-Gonzalez, 521 F.2d at 264-

65. In evaluating the federal Probation Act's underlying purpose of rehabilitation,

the court recognized that the development of a sensible probationary system

"requires that any condition which is imposed following conviction, whether or not

it touches upon 'preferred' rights, must be viewed in the context of the goals

underlying the Act." Consuelo-Gonzalez, 521 F.2d at 265 n.l4. The court held that

fundamental rights may be limited if they are imposed sensitively and with a "keen

appreciation" that the limitation serve the purpose of the underlying act. Consuelo-

Gonzalez, 521 F.2d at 265.

Both Clark and Bah/ cite back to Consuelo-Gonzalez, but Bah/ fashioned its

analysis from Riley and Malone. Bah/, 164 Wn.2d at 757 (quoting State v. Riley,

121 Wn.2d 22, 37, 846 P.2d 1365 (1993) (citing Malone, 502 F.2d at 566;

8
State v. K.H.-H., No. 91934-8

Consuelo-Gonzalez, 521 F.2d at 265)); Clark, 918 F.2d at 847-48 (citing Consuela-

Gonzalez, 521 F.2d at 264-65). Additionally, the court in Bahl-whose inquiry was

focused on a vagueness challenge-briefly mentioned the analysis from Malone in

the context of providing an example to refute the State's claim that probationary

conditions in Washington need only be crime related. The language in Malone

refers to the constitutionality of a condition that restricts an individual's freedom of

association. Furthermore, the case on which Malone relies, Birzon v. King, 469

F.2d 1241, 1243 (2d Cir. 1972), states that "the Government can infringe the first

amendment rights of prisoners so long as the restrictions are reasonably and

necessarily related to the advancement of some justifiable purpose of

imprisonment." (Emphasis added.)

The result under either analysis is the same. Looking at the exact language

of Clark, the court articulated a framework for determining the validity of

probation conditions, stating:

The test for validity of probation conditions, even where
preferred rights are affected, is "whether the limitations are primarily
designed to affect the rehabilitation ofthe probationer or insure the
protection of the public." [Consuelo-Gonzalez, 521 F.2d] at 265, n.
14. To apply this test, our court "must determine whether the
sentencing judge imposed the conditions for permissible purposes,
and then it must determine whether the conditions are reasonably
related to the purposes." United States v. Terrigno, 838 F.2d 371, 374
(9th Cir. 1988). "[T]he standard for determining the reasonable
relationship between probation conditions and the purposes of

9
State v. K.H.-H., No. 91934-8

probation is necessarily very flexible precisely because 'of our
uncertainty about how rehabilitation is accomplished."' I d., quoting
Consuelo-Gonzalez, 521 F.2d at 264.

Clark, 918 F.2d at 848 (second alteration in original). The court held that because

neither officer had admitted guilt or taken responsibility for their actions, the

condition would serve a rehabilitative purpose and was proper as it was reasonably

related to the federal Probation Act's purpose of rehabilitation. Clark, 918 F.2d at

848 ("'It is almost axiomatic that the first step toward rehabilitation of an offender

is the offender's recognition that he was at fault.'" (quoting Gallaher v. United

States, 419 F.2d 520, 530 (9th Cir. 1969))). The apology condition was also related

to the underlying crime: the defendants were public servants who betrayed the

public's trust through acts of dishonesty. Under the framework of Clark, we can

conclude a valid probation condition is one that is related to one of the purposes of

the act-in this case, rehabilitation-and is done to effectuate that purpose. Clark

embraces the idea that a trial court has wide discretion in fashioning conditions that

serve a rehabilitative purpose. We agree with that analysis.

While Clark is more analogous to the present case because it involved a

challenge to an apology condition whereas Bahl involved a constitutional

vagueness challenge, the result in applying the analytical framework from Bah! to

the present case is the same. The analysis from Bah! states,

10
State v. K.H.-H., No. 91934-8

A condition that constitutes a "[!]imitation[] upon fundamental rights"
is "permissible, provided [it is] imposed sensitively." Riley, 121
Wn.2d at 37. In accord with the federal rule, a convict's First
Amendment right "'may be restricted if reasonably necessary to
accomplish the essential needs of the state and public order."' I d. at
37-38 (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir.
1974)). Thus, conditions may be imposed that restrict free speech
rights if reasonably necessary, but they must be sensitively imposed.
This meshes with the vagueness doctrine's principle that where the
challenged law involves First Amendment rights, a greater degree of
specificity may be demanded. Here, for example, Bahl may be
restricted in the material he may access or possess, but the restrictions
implicating his First Amendment rights must be clear and must be
reasonably necessary to accomplish essential state needs and public
order.

Bah!, 164 Wn.2d at 757-58 (some alterations in original).

Even under Baht's somewhat different language, an apology letter condition

would be upheld. The apology letter condition is specific and concrete. In the

context of the present case, we find the condition is related to the crime of which

the offender was convicted and furthers the reformation and rehabilitation of the

juvenile, the purpose of the underlying act.

Under the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW, no

dispute exists that juvenile rehabilitation is an underlying purpose of the act. See,

e.g., RCW 13.40.010; State v. J.A., 105 Wn. App. 879, 886, 20 P.3d 487 (2001)

(the JJA seeks a balance between rehabilitation and retribution, and the purposes of

accountability and punishment must at times give way to the purpose of

11
State v. K.H-H, No. 91934-8

responding to the needs of the juvenile); State v. Bennett, 92 Wn. App. 63 7, 644,

963 P.2d 212 (1998) ("the JJA is designed to foster rehabilitation as well as

accountability of offenders"). Additionally, a victim has an interest in receiving a

letter of apology. The apology letter condition primarily aims to rehabilitate the

juvenile offender but also acknowledges the victim's interest in receiving the

apology.

This conclusion is consistent with the statutory goals that identify measures

that may be used to effectuate the purpose of rehabilitation. As part ofthe

disposition order, juvenile courts are permitted to enter "local sanctions." RCW

13.40.160, .0357. Such sanctions include "0-12 months of community

supervision." RCW 13.40.020(18). "Community supervision" is defined as "an

individualized program" during a probationary period that includes "[m]onitoring

and reporting requirements." RCW 13.40.020(5)(c). "'Monitoring and reporting

requirements'" authorize the court to enter "other conditions or limitations as the

court may require which may not include confinement." RCW 13.40.020(20)

(emphasis added).

Juvenile courts are permitted wide latitude and discretion in imposing

conditions in a disposition order. This makes sense given that juveniles are, by

their very nature, still developing. The JJA recognizes the differences between

12
State v. K.H.-H., No. 91934-8

adults and juveniles and embraces rehabilitation as a primary goal rather than a

focus primarily on punishment. Because of this, we hold that a juvenile court can

impose and require reasonable conditions that are related to the crime of which the

offender was convicted and that further the reformation and rehabilitation ofthe

juvenile.

Under the broad authority and discretion given to juvenile courts to craft

dispositions that adhere to the legislative intent of rehabilitation and crime-

relatedness, the juvenile court in the present case ordered K.H.-H. to "write a letter

of apology to victim C.R. that is approved by the Probation Officer and the State."

CP at 42; see State v. D.H., 102 Wn. App. 620, 629, 9 P.3d 253 (2000) ("The

juvenile court has considerable discretion to fashion an individualized

rehabilitative disposition that includes a broad range of community supervision

conditions."). The record in this case supports our conclusion that the juvenile

court imposed the letter of apology condition for the purpose of rehabilitating

K.H.-H. Specifically, the court was concerned that K.H.-H. refused to accept the

consequences ofhis harmful conduct. The trial court discussed K.H.-H.'s "pattern

of bad behavior with women" and pattern of"being disrespectful to women" and

that the court had grown increasingly concerned after having heard the testimony

from the two young victims. VTP at 154, 156. The court ordered this condition in

13
State v. K.H-H, No. 91934-8

an effort to address this type of behavior and help K.H.-H. understand that his

actions were harmful to young women.

A letter of apology demonstrates a recognition and acceptance of

responsibility for harmful actions. Such a condition is reasonably necessary for

K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.

Additionally, an apology letter recognizes the victim's interest in receiving

an apology from the perpetrator. An apology allows the victim to hear an

acceptance of responsibility from the very person who inflicted the harm. This is

particularly important where both the victim and perpetrator are juveniles, and

demonstrates to both the significance of giving and receiving an apology for

wrongful acts. This further advances the rehabilitative goals of the statute.

The outward manifestation of accepting and apologizing for the

consequences of one's actions is a rehabilitative step that attempts to improve

K.H.-H.'s character and outlook. Such a condition is reasonably related to the

purpose ofK.H.-H. 's rehabilitation and the crime here.

One must face the consequences of a conviction, which often include the

loss or lessening of constitutional rights. There is a whole range of constitutional

rights that can be affected by a conviction, not the least of which is a loss of

liberty. There may be a limitation on the degree to which First Amendment rights

14
State v. K.H.-H., No. 91934-8

may be restricted for those convicted of crimes, but an apology letter condition

does not approach that limit. We affirm.

WE CONCUR:

15
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

No. 91934-8

GORDON McCLOUD, J. (dissenting)-! agree with the majority that the

First Amendment ordinarily bars the government from compelling us to speak in

favor of a viewpoint that is against our beliefs. Majority at 4; U.S. CONST. amend.

I. I also agree with the majority that forcing someone to utter a confession and

apology that he or she does not, in his or her heart, believe, constitutes compelled

speech and thus would ordinarily violate this First Amendment protection. Majority

at 4-5 .. Finally, I agree with the majority that a criminal defendant can be deprived

of this fundamental right in certain circumstances. Id. at 5.

My agreement with the majority, however, ends there. The majority holds

that the government can compel a juvenile offender to speak against his deeply held

personal beliefs whenever the government thinks that it would be reasonable. See

majority at 6. But controlling Supreme Court precedent developed in the most

analogous context-that is, the First Amendment rights of prison inmates against

government-compelled speech-holds that the government cannot deprive the

1
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

convict of that right without an important government interest. Procunier v.

Martinez, 416 U.S. 396,413,94 S. Ct. 1800,40 L. Ed. 2d 224 (1974), overruled in

part by Thornburgh v. Abbott, 490 U.S. 401,413-14, 109 S. Ct. 1874, 104 L. Ed. 2d

459 (1989) (overruling Martinez as to incoming mail into a prison because it

implicates prison safety concerns, but not as to the prisoner's own outgoing

correspondence, where no such safety concerns exist). Here, that prerequisite is

satisfied: rehabilitation of the juvenile is certainly an important government

interest. But the First Amendment also requires the government to choose a

narrowly tailored means of achieving its permissible interest before compelling a

juvenile to endorse a viewpoint. See id. at 413; State v. Bah!, 164 Wn.2d 739, 757,

193 P.3d 678 (2008). That prerequisite is lacking in this case. Compelling a false

apology for a crime the defendant denies committing is far from the least restrictive

means of achieving rehabilitation. In fact, it is probably the most ineffective way to

achieve that result. I therefore respectfully dissent.

PROCEDURAL BACKGROUND

Following a bench trial, the juvenile court adjudicated K.H.-H., then a 17-

year-old male, guilty of fourth degree assault with sexual motivation against a

female classmate. Clerk's Papers (CP) at 51; Verbatim Tr. of Proceedings (VTP)

(Aug. 28, 2013) at 142. Despite this disposition, K.H.-I-I. maintains his innocence.

2
State v. K.H-H, No. 91934-8
(Gordon McCloud, J., dissenting)

VTP (Aug. 28, 2013) at 150.

During the disposition hearing, the court ordered as a condition of probation

that K.H.-H. "[s]hall write a letter of apology to victim C.R. that is approved by the

Probation Officer and the State." CP at 52. To obtain the State's approval, the letter

needs to be a "sincere written letter of apology ... mean[ing] an admission that he

did what he was accused of what he's doing and sorry he put her in that position."

VTP (Aug. 28, 2013) at 149 (emphasis added). The court explained its reasoning

for imposing this condition as follows:

I don't know anything about you, other than what was presented
in court, and my concern is, I don't want you to get in trouble again,
and my concern is about what, as I said, what I see as a pattern of, I
guess, being disrespectful to women. They'rel'l both much younger
than you were, and that's of concern to me. So I want to make sure that
there's some counseling to at least address that, and to be able to, I think
that you have a lot of respect for your mother, I don't have any question
about that, but in terms of peers who are younger than you, they warrant
respect. So that's going to be my ruling.

Id. at 156-57. Defense counsel expressly objected to this condition, arguing that

K.H.-H. maintained a right to control his speech and declare his innocence even after

the court's disposition. !d. at 150-51. K.H.-H. contends the forced apology violates

1 The underlying case involved two alleged assaults against two different
classmates, C.R. and E.O. The juvenile court acquitted K.H.-H. of the count against E.O.
after video footage undermined E.O.'s account of what had transpired. VTP (Aug. 14,
2013) at 143-44.

3
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

his freedom of speech under the First Amendment and article I, section 5 of the

Washington constitution?

ANALYSIS

A. The State Ordinarily Cannot Compel Speech in Support of a Particular
Viewpoint Absent the Strictest of Necessity

The majority correctly observes that this exact question is one of first

impression for this court and the United States Supreme Court. Majority at 3. But

we are not without guidance. Outside the context of probation conditions, compelled

speech is generally unconstitutional. This is because "[i]f there is any fixed star in

our constitutional constellation, it is that no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or other matters of opinion or

force citizens to confess by word or act their faith therein." W. Va. State Ed. ofEd.

v. Barnette, 319 U.S. 624, 642,63 S. Ct. 1178,87 L. Ed. 1628 (1943).

This protection against compelled speech applies even when the expression

would seem unobjectionable to most ofus. E.g., id. at 641-42 (compulsory salute

2
Although forced apologies, especially ones that require an admission of guilt, may
implicate a person's right against self-incrimination under the Fifth Amendment to the
federal constitution, K.H.-H. did not raise a Fifth Amendment challenge below or in his
briefs to this court. See Wash. Court of Appeals oral argument, State v. K.H.-H., No.
45461-1-II (Feb. 27, 2015), at 2:37, https://www.courts.wa.gov/contentl
OralArgAudio/a02/20150227/454611 %20-%20State%20v.%20K.H-H.mp3 ("We didn't
actually really raise a Fifth Amendment issue although I do think there are Fifth
Amendment questions here.")
4
State v. K.H-H, No. 91934-8
(Gordon McCloud, J., dissenting)

and pledge to the national flag); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428,

51 L. Ed. 2d 752 (1977) (compulsory display of state motto on vehicle license plate).

This is because the very purpose of the First Amendment is to "protect[] the right of

individuals to hold a point of view different from the majority and to refuse to foster

... an idea they find morally objectionable." Wooley, 430 U.S. at 715. The State,

therefore, must generally present a compelling need before it can force a person to

speak.

The Supreme Court has adopted two tests for analyzing the constitutionality

of compelled speech. In Wooley, the compelled speech at issue was the compulsory

display of New Hampshire's state motto, "'Live Free or Die,"' on vehicle license

plates. !d. at 706-07. The Maynards challenged this motto as repugnant to their

moral, religious, and political beliefs as members of the Jehovah's Witnesses faith.

!d. at 707. In striking down New Hampshire's compulsory display law, the Supreme

Court held that such laws must be narrowly tailored to achieve a legitimate and

substantial governmental purpose. !d. at 716. According to the Supreme Court,

"' [t]he breadth of legislative abridgment must be viewed in the light of less drastic

means for achieving the same basic purpose."' !d. at 716-17 (quoting Shelton v.

Tucker, 364 U.S 479,488, 81 S. Ct. 247,5 L. Ed. 2d 231 (1960)).

5
State v. K.Ii-H., No. 91934-8
(Gordon McCloud, J., dissenting)

The Supreme Court adopted an even more protective First Amendment test in

Barnette where, as here, the government compelled not just the passive display of

speech but the express affirmation of a viewpoint-and did so with juveniles.

Barnette, 319 U.S. at 633. In Barnette, the West Virginia State Board of Education

adopted a resolution requiring students to salute the American flag and "'pledge

allegiance to the Flag ofthe United States of America and to the Republic for which

it stands; one Nation, indivisible, with liberty and justice for all."' I d. at 628-29.

The board made no exceptions, not even for the young Jehovah's Witnesses. Id. at

628. The Court struck down the resolution as unconstitutional. It explained that the

government cannot command such an involuntary affirmation unless it is narrowly

tailored to address a clear and present danger. Id. at 633-34.

The majority does not dispute that forced apologies are generally

unconstitutional tmder Barnette. It contends that a different, less protective test

applies when the compulsion to speak is part of a criminal sentence or juvenile

disposition. Majority at 5. I agree, but the test the majority adopts strips away so

many protections that it undermines the core holding of Barnette and conflicts in

principle with decisions on free speech in the prison and probation context from both

this court and sister jurisdictions.

6
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

B. The Supreme Court Has Applied Strict Scrutiny to Content-Based
Restrictions on Free Speech Even in the Prison Context

We all agree that convicted and incarcerated persons can be deprived of many

rights, including constitutional rights. Majority at 5. Indeed, as the Supreme Court

has explained, it is a "familiar proposition that '[!]awful incarceration brings about

the necessary withdrawal or limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal system."' Pel! v. Procunier, 417

U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) (alteration in original)

(quoting Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356

(1948)).

But this does not mean that an inmate loses all of his or her First Amendment

rights at the prison door. Instead, the Supreme Court has held that even an

imprisoned adult "retains those First Amendment rights that are not inconsistent with

his [or her] status as a prisoner or with the legitimate penological objectives of the

corrections system." !d. Such objectives certainly include deterrence and

rehabilitation. !d. at 822-23.

The Supreme Court, however, has never held that the goal of rehabilitation,

alone, permits the judge or jailor to compel inmate or probationer speech with a

specified content. Indeed in Pel!, the Court was careful to distinguish content-

neutral prison regulations that limit the avenues of communication available to

7
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

inmates from prison regulations that limit the content of the prisoner's own speech.

Id. at 824. According to the Court, as long as the "restriction operates in a neutral

fashion, without regard to the content of the expression, it falls within the

'appropriate rules and regulations' to which 'prisoners necessarily are subject."' Id.

at 828 (quoting Cruz v. Beta, 405 U.S. 319, 321, 92 S. Ct. 1079, 31 L. Ed. 2d 263

(1972)). In contrast, prison restrictions that limit the content of an inmate's own

communications "must further an important or substantial governmental interest

unrelated to the suppression of expression" and "the limitation on First Amendment

freedoms must be no greater than is necessary or essential to the protection of the

particular governmental interest involved." Martinez, 416 U.S. at 413. "Thus a

[content-based] restriction on inmate correspondence that furthers an important or

substantial interest of penal administration will nevertheless be invalid if its sweep

is unnecessarily broad." I d. at 413-14. 3

Compelling speech that voices a specific viewpoint is obviously a content-

based restriction. Riley v. Nat'! Fed'n of Blind ofNC., 487 U.S. 781,795, 108 S.

Ct. 2667, 101 L. Ed. 2d 669 (1988). This is because "[m]andating speech that a

speaker would not otherwise make necessarily alters the content ofthe speech." I d.

3
Later Supreme Court decisions certainly overruled the application of this rule to
many prison situations. But they preserve its application to the single, limited situation at
issue here, the convicted offender's own speech: "Martinez [is] limited to regulations
concerning outgoing [prisoner] correspondence." Thornburgh, 490 U.S. at 413.
8
State v. K.H-H, No. 91934-8
(Gordon McCloud, J., dissenting)

Thus, it follows that Martinez-not Fell-should apply in the context of a prison

regulation compelling speech with a specified viewpoint, and would require that

such regulation be narrowly tailored to meet an important or substantial

governmental interest. It also logically follows that we cannot choose a test that is

less protective of the First Amendment where, as here, the offender who is compelled

to confess and apologize is not an imprisoned adult but a released juvenile offender.

C. This Court Has Applied a Similar Important Interest, Narrow-Tailoring
Test to Content-Based Probation Conditions

Perhaps for that reason, this court has applied a similar test to probation

conditions. As we explained in Bahl, "A [community custody] condition that

constitutes a '[!]imitation[] upon fundamental rights' is 'permissible, provided [it is]

imposed sensitively."' 164 Wn.2d at 757 (most alterations in original) (quoting State

v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). This, we explained, means "a

convict's First Amendment right "'may be restricted if reasonably necessary to

accomplish the essential needs of the state and public order.""' Id. (quoting Riley,

121 Wn.2d at 37-38 (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir.

1974))). The decision we quoted, Malone, said that an even more protective test

would likely apply if the First Amendment rights at issue were freedom of speech or

religion, as opposed to the freedom of association at issue there. Malone, 502 F.2d

at 556 ("The courts strive to protect freedom of speech, religion and racial equality,

9
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

but freedom of association may be restricted if reasonably necessary to accomplish

the essential needs of the state and public order."). 4 Thus, the majority correctly

cites Bahl as requiring that probation conditions limiting free speech "be narrowly

tailored to serve an important government interest and must be reasonably necessary

to achieving that interest." Majority at 7; Bahl, 164 Wn.2d at 757.

In spite of quoting and crediting that Bahl test, the majority declines to apply

it. But it is our most recent case in the most analogous context, and it is neither

incorrect nor harmful; hence, it remains controlling (and persuasive) authority. Bahl

holds that a probation condition like the one in this case violates the First

Amendment unless it both serves an "important government interest" and is

"narrowly tailored" and "necessary to achieving that interest." If the majority really

applied that test here, the probation condition could not survive. According to the

juvenile court, the governmental purpose for ordering K.H.-H. to write a letter of

4 I agree with the majority that any reliance on freedom of association cases in the
context of freedom of speech inquiries would be misplaced, see majority at 7, 9, because
those cases describe a less exacting First Amendment analysis. See Riley, 121 Wn.2d at
37-38 (applying freedom of association analysis to restriction against associating with
computer hackers and communicating on computer bulletin boards); Malone, 502 F.2d at
555 (banning participating with, belonging to, working for, or visiting certain
establishments and organizations affiliated with the American Irish Republican
movement); Birzon v. King, 469 F.2d 1241, 1241 (2d Cir. 1972) (prohibiting any
association with persons having a criminal record). Notably, however, the decisions
adopting those less protective tests addressed conditions restricting association, not
conditions compelling association against the defendant's will.

10
State v. K.H-H, No. 91934-8
(Gordon McCloud, J., dissenting)

apology was to address K.H.-H.'s pattern of disrespect toward younger women.

VTP (Aug. 28, 2013) at 156-57. But the juvenile court could have addressed this

concern without infringing upon K.H.-H.'s First Amendment rights-and could

have done so far more effectively. For example, the court could have required K.H.-

H. to write an essay on the lifelong effects that rape has on young victims. 5 Instead,

the court ordered K.H.-H. to write a letter of apology that includes a confession of

wrongdoing. See CP at 52; VTP (Aug. 28, 2013) at 149. This is not narrowly

tailored or necessary. As the Supreme Court has explained, it is one thing to provide

education that tends to inspire a specific belief; it is another to shortcut this effort

altogether with the substitution of a compulsory statement. Barnette, 319 U.S. at

631.

Not surprisingly, no one-not even the State--argues that the apology

requirement imposed by the juvenile court in this case was a narrowly tailored means

or "necessary" to achieve the permissible goal of rehabilitation. The majority's

decision to affirm shows that it is implicitly rejecting Bahl. Majority at 15.

In fact, the majority acknowledges that Bah! describes the First Amendment

5 See In re TM., No. H-11-009, 2012-0hio-3408, ~ 3, 2012 WL 3061851 (Ohio Ct.
App. 20 12) (affinning disposition order requiring the juvenile offender to write a 1,000-
word essay on '"why racism is wrong"' against First Amendment challenge). According
to the court, an essay requirement does not implicate the First Amendment where the court
merely chooses the topic of the essay that the juvenile is required to address. !d.~ 5.
11
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

test using very different language than the language the majority ultimately borrows

from Clark (see supra Part D below). Majority at 8. As discussed above, under

Bah!, probation conditions that infringe on a defendant's First Amendment rights

must be "reasonably necessary to accomplish the essential state needs and public

order." 164 Wn.2d at 758. The majority dismisses Baht's express requirement that

the condition be "reasonably necessary" as requiring no more than a "reasonable

relationship" among the imposed condition, the underlying crime, and a sentencing

purpose. See majority at 13-14. But that is not what Bah! says. Bah! says the

condition must be "necessary." This language cannot be set aside as superficial or

cosmetic. It is constitutionally required in this context.

D. The Majority Adopts the Least Protective Test

In the place of the Bah! test, the majority adopts the least protective test-a

highly deferential, rational-relationship test. Majority at 6, 13, 12 (deferring to the

sentencing court's "broad discretion," "broad authority," and "wide latitude").

According to the majority, any compelled speech condition will be upheld against a

First Amendment challenge as long as that condition is "related to the crime of which

the offender was convicted [or adjudicated guilty]" and furthers some sentencing

purpose. Majority at 13.

12
State v. K.H.-H., No. 91934-8
(Gordon McCloud, J., dissenting)

The majority relies primarily on the Ninth Circuit's decision in United States

v. Clark, 918 F.2d 843 (9th Cir. 1990) for this deferential, "related to the underlying

crime" test. Majority at 9-10. In Clark, the trial court imposed a probation condition

requiring two officers convicted of perjury to publish apologies and acknowledge

that they had lied and betrayed the trust and confidence of the people. 918 F.2d at

845. The Ninth Circuit affirmed, adopting a very forgiving, rational-relationship

test: "The test for validity of probation conditions, even where preferred rights are

affected, is 'whether the limitations are primarily designed to affect the rehabilitation

of the probationer or insure the protection of the public."' I d. at 848 (quoting United

States v. Consuelo-Gonzalez, 521 F.2d 259, 265 n.l4 (9th Cir. 1975) (en bane)).

Probation conditions satisfy the Clark test if "'the sentencing judge imposed the

conditions for permissible purposes, and ... the conditions are reasonably related to

the purposes."' Id. (quoting United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.

1988)). The majority accurately cites the Clark test.

But it is not the Supreme Court's test, it is not our court's Bah! test, and it

cannot be the First Amendment's test. Under the majority's and Clark's test, the

Alabama court could have ordered Dr. Martin Luther King, Jr., to write an apology

to the state of Alabama rather than his "Letter from Birmingham Jail." The question

for our court is not whether we like or hate that consequence as a policy matter. The

13
State v. K.H-H, No. 91934-8
(Gordon McCloud, J., dissenting)

question for us is only whether it is constitutional. Under the majority's restatement

of the Clark test, it might be. But under the First Amendment, analogous Supreme

Court decisions, and Bah!, it is not: before the State can compel a person-even a

juvenile offender-to speak and endorse a viewpoint, the State must not only justify

the condition with an important governmental need, but must also narrowly tailor

that condition so that it compels no more speech than necessary to meet that need.

Martinez, 416 U.S. at 413; Bah!, 164 Wn.2d at 757.

CONCLUSION

The juvenile court's forced apology condition fails under any First

Amendment test other than the majority's highly deferential, rational-relationship

test borrowed from language in Clark. Under the Supreme Court's test in Martinez,

the government cannot restrict the content of a prison inmate's speech in this context

unless the restriction "further[ s] an important or substantial governmental interest"

and is narrowly tailored so that it infringes on "no greater [speech] than is necessary

or essential to the protection of the particular governmental interest involved." 416

U.S. at 413. The compelled confession and apology in this case fails that narrow-

tailoring requirement. Under the test we articulated in Bah!, the condition must be

'"reasonably necessary to accomplish the essential needs of the state and public

order."' Bah!, 164 Wn.2d at 757 (internal quotations marks omitted) (quoting Riley,

14
State v. K.H-H, No. 91934-8
(Gordon McCloud, J., dissenting)

121 Wn.2d at 37-38). The compelled confession and apology in this case fails that

requirement also. In fact, under controlling Supreme Court precedent, compelled

speeches and pledges are probably the worst ways to teach remorse or anything else:

"A person gets from a symbol the meaning he puts into it, and what is one man's

comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33.

I respectful! y dissent.

15
State v. K.H.-H, No. 91934-8
(Gordon McCloud, J., dissenting)

16